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Structural Objections to the Inherent Commander-in-Chief Power Thesis

The traditional view of the war powers shared by Congress and the President is that Congress, through the Declare War Clause, has the constitutional power to decide when to commit the nation to armed conflict, while the President has the constitutional power to decide how to wage war once war has been initiated. The Bush Administration, on the other hand, has relied on a claim that the President's position as Commander-in-Chief includes inherent power to use military force as he sees fit, with Congress's check being limited to its power to refuse to fund military expenditures. Critics of the inherent powers thesis have taken issue with the historical and textual arguments advanced on its behalf, but in this short Article, I take a different approach. Assuming for the sake of argument that the inherent powers thesis accurately describes the original understanding of war powers, I nevertheless raise structural objections that demonstrate in certain modern situations, Congress cannot defund the President's military operations, either because (1) the military operation has completed before Congress can act, such as the ill-fated Iran hostage rescue mission; or (2) the executive action has been effectively concealed from Congress, such as the controversial NSA wiretapping program disclosed in late 2005. If Congress cannot defund these operations, then it cannot exert a check on the President's action in those contexts.